New Suit Filed to Protect Hawaii's False Killer Whales From Death in Longline Fishery

HONOLULU— Environmental groups filed suit in federal court in Honolulu today against the National Marine Fisheries Service, challenging the agency’s failure to finalize and implement a plan to protect false killer whales from the Hawai‘i-based longline fisheries. The move is aimed at ending the continuing slaughter of false killer whales (Pseudorca crassidens, a large dolphin species) in the waters of Hawaii. Earthjustice is representing the Center for Biological Diversity and Turtle Island Restoration Network.

The federal fisheries agency’s own studies show that longline fishing is killing Hawai‘i’s false killer whales at rates far higher than the animals can sustain; yet the agency is now six months past its statutory deadline to finalize a plan to reduce the killing.

Photo courtesy National Marine Fisheries Service.

“It’s wrong for the government to delay action when its own studies show that these extraordinary animals can’t sustain the number of deaths being visited on them by Hawaii-based longliners,” said Brendan Cummings of the Center for Biological Diversity.

According to the Fisheries Service’s latest official report, longline fishing is killing false killer whales found within 87 miles (140 kilometers ) of the main Hawaiian Islands — the “Hawaii insular stock” — at three times the rate this population can sustain, while false killer whales in Hawaiian waters farther from shore — the “Hawaii pelagic stock” — are dying at four times sustainable levels. The agency has proposed listing the insular stock, which numbers only about 170 animals and has been declining by 9 percent per year since 1989, as “endangered” under the Endangered Species Act.

“These magnificent false killer whales don’t deserve a cruel death at the end of a longline hook, especially since common-sense solutions already exist to prevent serious injuries and drowning,” said Todd Steiner, biologist and executive director of the Turtle Island Restoration Network. “The ecological cost of longlining is mounting. In addition to imperiled false killer whales, the fishery kills critically endangered sea turtles, albatrosses and other seabirds.”

Congress amended the Marine Mammal Protection Act in 1994, with the goal of achieving zero marine mammal morality in commercial fisheries by the year 2001. The law establishes clear deadlines for the Fisheries Service to take action to protect marine mammals, which the agency routinely ignores.

“Congress understood that that time is of the essence if we are going to save marine mammals,” said Earthjustice attorney David Henkin. “But here we are, almost 20 years and a trail of litigation later, and false killer whales are still being needlessly hooked and killed in longline gear. One group of false killer whales is down to the last 170 animals, the tuna longline fishery is killing them at three times the rate they can sustain, and yet nothing is being done to protect them. Another group of false killer whales is being depleted by the fishery at four times the rate they can sustain. We’re taking action to protect these false killer whales before they’re gone.”

Earthjustice went to court on behalf of the conservation groups in 2003 to force the Fisheries Service to classify the Hawaii longline fisheries as “Category I” due to their unsustainable “take,” i.e. harming or killing false killer whales. The agency made the classification in 2004, but failed to follow up on the listing by convening a team to develop a take-reduction plan.

Another round of litigation followed, and, in January 2010, the Service finally established a take-reduction team for the false killer whales, which included scientists, conservationists, state and federal agencies and fishing industry representatives. Within six months, the team achieved consensus on a draft take-reduction plan.

More than 90 percent of longline fishery interactions lead to death for false killer whales. The animals typically drown when they are hooked by the deep-set fishing lines, which target ahi. If the false killer whales do escape, they often trail fishing gear that hinders their ability to feed, causing them to die of starvation or infections stemming from their wounds.

“The best science tells us that, to reduce the fishery’s killing of false killer whales, we need to figure out how to help animals that get hooked free themselves,” said Cummings, who served on the take-reduction team. “The team proposed requiring the use of ‘weak hooks’ that would be strong enough to hold an ahi, the fishery’s target species, but weak enough to allow a larger, stronger false killer whale to straighten the hook and pull it out. Of course, this proposal, which the longliners agreed to, won’t do the false killer whales any good unless and until the Fisheries Service finalizes the plan.”

The agency is now more than six months past the Dec. 16, 2011 statutory deadline to finalize the plan.

In an April 26 letter to Earthjustice, agency regional administrator Michael Tosatto agreed that “conservation needs of false killer whales are of paramount concern.” However, the agency claimed it needed more time to revise its take reduction plan.

“Congress understood that no take reduction plan will be perfect when it’s issued, and the Marine Mammal Protection Act allows the federal fisheries agency to revise its plans, if warranted,” said Henkin. “The agency cannot, however, completely deprive Hawai‘i’s false killer whales of vital protections while it tinkers. The law imposes deadlines for a reason.”

A December 2008 study by the Government Accountability Office recognized this, saying delays in finalizing take reduction plans “could result in continued harm to already dwindling marine mammal populations.”

“NMFS has known about the false killer whales’ dire plight for years, but has repeatedly refused to take action until forced by litigation,” Steiner said. “That's why we are headed back to court.”

See more photos of the devastating toll that Hawaii-based longline fishing inflicts on Hawaii’s false killer whales here: http://earthjustice.org/fkw

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Earthjustice is a nonprofit, public-interest, environmental law firm. The Mid-Pacific office opened in Honolulu in 1988 as the Sierra Club Legal Defense Fund, and has represented dozens of environmental, native Hawaiian, and community organizations. Earthjustice is the only non-profit environmental law firm in Hawai‘i and the Mid-Pacific, and does not charge clients for its services. For more information, visit www.earthjustice.org.

The Center for Biological Diversity is a national, nonprofit conservation organization with more than 375,000 members and online activists dedicated to the protection of endangered species and wild places. For more information, visit www.biologicaldiversity.org

Turtle Island Restoration Network is a nonprofit environmental organization committed to the study, protection, enhancement, conservation, and preservation of the marine environment and the wildlife that lives within it. TIRN has approximately 60,000 members and supporters, many of whom reside in the state of Hawai‘i, and has offices in the United States, Costa Rica, and Papua New Guinea. For more information, visit www.SeaTurtles.org.